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Zambezia (1995), XXII (ii).

ZIMBABWE'S ENVIRONMENTAL IMPACT ASSESSMENTPOLICY OF 1994: CAN IT ACHIEVE SOUND

ENVIRONMENTAL MANAGEMENT?

WEBSTER CHINAMORA1

University of Stellenbosch, South Africa

AbstractEnvironmental impact assessment (EIA) constitutes an essential tool forintegrating environmental and economic considerations in the planningprocess. Realising this, the Government of Zimbabwe recently adopted anEIA policy. However, the policy is not yet law and so it is unlikely to have animpact in its present form since no legal compulsion exists for developersand project proponents to follow its mandate. There is an urgent need for astatutory basis to be created for the EIA policy if it is to achieve sustainablemanagement of resources. The article notes that while foreign methodologiesare relevant in the search for an appropriate legislative model, they have tobe domesticated to suit local environmental problems and priorities.

AT PRESENT, ENVIRONMENTAL legislation in Zimbabwe is seriously fragmentedsince several statutes either deal with or are relevant to the managementof the environment.2 To compound the problem, eight different ministriesadminister this legislation.3 The unfortunate result of this state of affairs isthat decisions concerning development are made by different bodies fromthose charged with protection of the environment. Obviously, little roomis left for overcoming the economic and technological bias inherent indevelopment proposals so as to ensure that environmental concerns areaccommodated. One academic commentator has put the dilemma asfollows:

1 I gratefully acknowledge Jennifer Mohamed-Katerere of the Department of Public Law,University of Zimbabwe, for her useful comments on the initial draft of this article. However,the views expressed in the article remain mine.

2 D. Henley, 'A Review of Zimbabwe's Natural Resources and Land Use Legislation andSome Options for Implementing an Integrated Approach to Natural Resources to SustainableDevelopment' (Harare, Ministry of Environment and Tourism, Unpubl., 1990) lists 12 majorenvironmental statutes while The National Conservation Strategy: Zimbabwe's Road to Survival(Harare, Ministry of Information, 1987) identifies 18. A recent report prepared for the Ministryof Environment and Tourism, W. N. Chinamora and D. W. Ruhukwa, 'Towards an EnvironmentalManagement Act: Review and Revision of Zimbabwe's Environmental Legislation' (Harare,Ministry of Environment and Tourism, Unpubl., 1995) examined 18 statutes having a bearingon the environment.

3 See Chinamora and Ruhukwa, 'Towards an Environmental Management Act', 4, where atabular presentation is made of the legislation concerned and the responsible authority.

153

154 ZIMBABWE'S ENVIRONMENTAL IMPACT ASSESSMENT POLICY

. .. policies made and executed by development-orientated administrative bodiesoften lie at the root of environmental pollution and degradation and depletion ofnatural resources, problems which have to be addressed by conservation-orien-tated administrative bodies.4

Nonetheless, it is generally considered that an effective planning toolto overcome these shortcomings is Environmental Impact Assessment(EIA) since it strives to ensure that the potential impact of a proposedaction upon the environment is identified and disclosed prior to a decisionto proceed or desist from the action.5 In this exercise, a re-ordering ofpriorities in administrative decision-making becomes inevitable so that:

In each individual case the particular economic and technical benefits of plannedaction must be assessed and weighed against the environmental costs; alternativesmust be considered which would affect the balance of values.6

Against a backdrop of environmental legislation bedevilled byfragmentation, the question then is: should Zimbabwe have an EIA policyor legislation on EIA in order to meet the challenges of sustainabledevelopment?7 In fact, in July 1994, the government declared an EIA policywhich has since been used on an essentially ad hoc and voluntary basis.8

This contribution will suggest that statutory recognition must be given tothe EIA process as a policy simpliciter might prove tenuous to enforce.9

This is important since EIA plays a crucial role in the developmentpolicy of any country especially Zimbabwe. EIA is not meant to stifledevelopment but to study the effects of a proposed action on theenvironment and to compare the various alternatives that are availablefor any project or programme. A trade-off is eventually achieved so thatadverse environmental impacts may be reduced at higher project cost oreconomic benefits enhanced at some environmental cost. Therefore the

4 M. A. Rabie, 'A new deal for environmental conservation: Aspects of the EnvironmentalConservation Act 73 of 1989' THRHR (1990), LHI, (ii), 5.

5 See R. E. Munn (ed.), Environmental Impact Assessment (New York, John Wiley, 1979); M.A. Rabie, 'Disclosure and evaluation of potential environmental impact of proposedgovernmental administrative action' THRHR (1976), 40; and M. A. Rabie, 'Strategies for theimplementation of environmental impact assessment in South Africa' SA Public Law (1976), 19.

6 Calvert Cliffs Coordinating Committee vs Atomic Energy Commission 449F 2d (DC Cir 1971).7 The goals of sustainable development and some strategies for meeting them are more

fully dealt with in the World Commission on Environmental and Development's Oar CommonFuture (New York, O.U.P., 1987).

8 See Environmental Impact Assessment Policy, July 1994.9 However, the government has already recognised the need for legislation on ElAs. The

current policy is a pre-legislation trial so that problems experienced in practice may beincluded in the legislation when it is drafted. Nevertheless, even during this trial phase, ifdevelopers were to ignore the mandate of the policy, there is no enforcement mechanism.

WEBSTER CHINAMORA 155

perception that EIA is a bureaucratic stumbling block in the path ofdevelopment is misconceived. In fact EIA is a pragmatic tool fordevelopment planning and no reasonable person would condemn such atool, akin to economic analysis, simply because it shows a particularproject to be unsound.10 Thus, if given the necessary legislative teeth, EIAcould play a significant role in the development process in Zimbabwesince the decision-maker is, at an early stage, guided away from potentialdisaster.

It is pertinent first to examine the current planning and environmentallegislation so as to identify whether any EIA mechanism exists. Then, theEIA policy will be looked at and an evaluation made on the need for alegislative framework for that policy.

CURRENT PLANNING AND ENVIRONMENTAL LEGISLATION

Planning lawAn examination of the main planning statute, the Regional, Town andCountry Planning Act,11 compels the conclusion that it does not payparticular regard to the environment.

While disclosing the objective of planning of regions, districts andlocal areas so as to conserve and improve the 'physical environment', itdoes not specifically urge decision-makers to take account of environmentalfactors. For example, no provision is made for EIA in the preparation ofregional, master and local plans, or any town-planning scheme, zoning orsubdivision made under the Act. Thus, in various zones, certain uses ofland and development are freely permitted while some require the 'specialconsent' of the relevant planning authority. Nevertheless, special consenthas been judicially defined to mean 'no more than the consent requiredfor putting property to a use to which it cannot be put in the zone in whichit is situated without such consent'.12

Yet, there are certain provisions in the planning law which holdconsiderable promise for environmental protection and lend themselvesvery well to implementation of EIA. The relevant Minister is, for instance,empowered to 'make a special order applicable to a specified area' and toimpose 'conditions or limitations subject to which any development ispermitted'.13 This opens the possibility for environmental evaluation to be

10 Y. J. Ahmad and G. K. Sammy, Guidelines to Environmental Impact Assessment in DevelopingCountries (London, Hodder and Stoughton, 1985).

1 ' Act No. 22 of 1976. There are numerous regulations, master plans and approved schemesmade or adopted in terms of this Act, in respect of various areas in Zimbabwe.

12 City of Salisbury vs Sagit Trust Limited 1981 ZLR 479 at p. 488.13 Section 26 (2) (a) and (b).

156 ZIMBABWE'S ENVIRONMENTAL IMPACT ASSESSMENT POLICY

done before development in sensitive areas is allowed. In fact, the viewexpressed here is vindicated by a 1982 amendment to the Regional, Townand Country Planning Act,14 which introduced 'scenic beauty areas' in thedefinition section.'5 The Minister became entitled, where he consideredthat development in an area by reason of its scenic beauty required to becontrolled, to declare such an area to be a scenic beauty area.16

However, in the absence of a statutory compulsion to carry out EIAsthese provisions largely remain of theoretical significance. At the moment,whether a particular development will not be carried out in anenvironmentally undesirable area is a matter left to the relevant Minister'ssole discretion. It is therefore imperative for EIA procedures to be builtinto the Regional, Town and Country Planning Act. This is urgent because,due to the broad nature of the concept 'environment',17 planning laws maydirect attention at some aspects of the environment, while negating others,resulting in an undermining of the entire conservation effort. Yet planninglaw should regulate land-use with the purpose of ensuring the health,safety and welfare of society having regard to socio-economic factors.18

This was described elsewhere as 'environmental land-use planning', whichwas defined as 'the physical planning of regions, districts and local areasthat ensures the prevention of environmental pollution and conservationof natural resources'.19

Because of the inadequacies of our planning law, it has been observedthat the Regional, Town and Country Planning Act 'requires extensiveamendment to capture the goals, objectives and values of sustainabledevelopment'.20 However, what should be done is not so much extensiveamendment of the Act, but rather the provision of a statutory foundationto the EIA policy so that it binds all decision-making having an impact onthe environment.

A further shortcoming in the planning law is to be found in the RuralDistrict Councils Act21 which, like the Regional, Town and Country PlanningAct, does not provide for EIA when district development plans are drawn.It is essential that EIA permeates decision-making at this stage of planning

14 Regional Town and Country Planning Amendment Act, No. 9 of 1982.15 Section 2(1).16 Section 2 (6)."This has been discussed elsewhere. See W. N. Chinamora, 'Justifying the designation of

Churu Farm: An environmental management perspective' Legal Forum (1994), VI, (iv), 46.18 J. Van Wyk 'Into the 21st century with the reform of planning law' THRHR (1991), U, 283.19 See Chinamora and Ruhukwa, 'Towards an Environmental Management Act', 88-89.20 Government of Zimbabwe, Envi ronmenta l Asses smen t in Z imbabwe : Pol icy Pos i t ion

Paper ' , July 1994, 10.21 Act No. 8 of 1988.

WEBSTER CHINAMORA 157

if these pieces of legislation are to fulfil meaningfully their function ofplanning land use.

In addition, there is little scope for public participation in the decision-making process, even though the public bears the consequences of thosedecisions. A notable example is the Rural District Council Act,22 whichestablishes a District Development Committee to assist in the importantfunction of preparation of district development plans.23 However, thecommittee is comprised of the chairperson of all council committees, thechief executive officer of the council, representatives of the ZimbabweRepublic Police, Zimbabwe National Army, the President's Office and allsectoral ministry departmental heads.24 Such a composition is, as hasbeen noted elsewhere,25 not representative of district inhabitants andmore biased towards sectoral ministry representation. Yet, because EIA isa mechanism for identifying, assessing and communicating theenvironmental consequences of projects, plans or programmes so as toaid decision-making, public participation is a necessary ingredient.26

Conservation lawThe principal resource conservation and utilisation statute, the NaturalResources Act,27 also does not provide for EIA when decisions affectingthe environment are made. For instance, the Act provides that no largedam may be constructed unless the Natural Resources Board has reportedto the relevant Minister on 'the state of the catchment area of such largedam'.28 Similarly, no soil conservation project may be embarked uponunless a report on the effect of the project on the natural resources of thearea has been furnished by the Board to the Minister.29 While theseprovisions are encouraging from an environmental perspective, instead,an EIA should be undertaken for all projects likely to have a significantimpact on the environment. This suggestion is underscored by the factthat, the Water Act30 as presently constituted introduces little control

22 Ibid.23 Section 60 (5).24 Section 60(1).25 P. N. Bradley and K. McNamara (eds.), Living with Trees: Policies for Forestry Management

in Zimbabwe (Washington D.C., World Bank, 1993), 177.26 Munn (ed.), Environmental Impact Assessment, 4; A. Lucas, 'The Utah controversy: A case

s t u d y of public part icipat ion in pollution control ' Natural Resources Journal (1973), XIII, 36.27 Chapter 150. However, it is debatable whe the r in fact this s t a tu te is t he main resource

conservat ion law since it does no t really set out general principles of resource formulation.Other pieces of legislation dealing with natural r esource conservat ion a re t h e Water Act No.41 of 1976 and the Forest Act, Chapter 125.

28 Section 4 (2).29Sectionl4(3).30 Act No. 41 of 1976.

158 ZIMBABWE'S ENVIRONMENTAL IMPACT ASSESSMENT POLICY

over the construction of dams. No provision is made for submission of areport on 'the state of the catchment' when structures to keep water forstock watering or domestic purposes are constructed.31

Hence, it is doubtful whether, even if such a report is compiled, thiswould comprise an adequate mechanism to guarantee protection of theenvironment. First, such a report is not an Environmental Impact Report(EIR) and merely describes the state of the catchment. Secondly, whenfurnished with such a report, the Minister is merely required

to inform the appropriate Minister, or any other person responsible for the dam orproject, of any conservation problems identified, the remedial measures necessaryand the apportionment of costs as recommended in the report.32

It would seem that once the report has been prepared and the Ministerhas advised the proponent of the contents thereof then cadit questio.Regrettably, no provision has been made for the Minister to make surethat the recommendations in the report have been complied with.

Regulatory provisionsIn most statutes, particularly those which are germane to the managementof the environment, regulatory provisions are those pertaining to licensingand other authorisation of certain action.33 Unfortunately, existingenvironmental legislation does not explicitly require the regulated bodyto conduct an EIA as part of the procedure of application for the requiredlicence. For example, the Fertilizer, Farm Feeds and Remedies Act,34 which,inter alia, provides for the registration of fertilizers, farm feeds, sterilisingplants and certain remedies,35 does not incorporate EIA in applications forregistration. The Act provides, however, that the registration should 'notbe contrary to the public interest',36 which could be interpreted to includethe environmental public interest. Nevertheless, it would have beendesirable to include, as the Americans did in 1972, the requirement thatsuch fertilizer, farm feed, remedy or sterilising plant 'will perform itsintended function without unreasonable adverse effects on theenvironment'.37

31 Sect ion 54.32 Section 14 (4) of Natural R e l a x e s Act.33 The term 'regulatory' has been used more for convenience than to suggest that the

provisions in the previous sections are not regulatory. In this context its use has been limitedto permit and licence provisions.

34Chapter 111.35 See Preamble t o Act.36 Section 4 (2) (a) (ii).37 See the United States Federal Insecticide, Fungicide and Rodent ic ide Act of 1947 as

amended.

WEBSTER CHINAMORA 159

The Atmospheric Pollution Prevention Act,38 despite purporting in itslong title 'to provide for the prevention and control of the pollution of theatmosphere', does not require an applicant for a registration certificate toundertake an EIA prior to the grant of the authority.39 However, there issome scope for including EIA in decision-making since the Chief HealthOfficer is enjoined to satisfy himself that:

the specified process in respect of which the application is made may reasonablybe permitted to be carried on, having regard to the nature of that process, thecharacter of the locality in question, the purposes for which other premises in thelocality are used, whether the carrying on of the process would conflict with anytown planning scheme in operation or in the course of preparation in the localityand any other considerations which, in his opinion, have a bearing on the matter.40

It should, nonetheless, be specifically stipulated that an EIA beundertaken and a report of the findings therefrom be submitted with anapplication for a registration certificate. The present regulatory scheme isineffective as it is highly discretionary: an EIA requirement wouldconsiderably eliminate the arbitrariness inherent in the exercise ofadministrative discretion.

Furthermore, it is disappointing that no EIA is mandated whereexemptions from the requirement of authorisation are granted. For instance,the Water Act makes it an offence for anyone to discharge effluent in awatercourse unless authorised by a permit which prescribes standards tobe complied with.41 However, the relevant Minister is empowered, afterconsultation with the Minister of Health and Child Welfare, to grantexemptions from compliance with stipulated standards.42 Yet the actionsof persons and bodies in respect of which they are exempted from theregulatory requirement may have, and invariably do have in practice, adetrimental environmental impact.

From the above examples, it is evident that the existing legislativemachinery does not ensure that the potential environmental implicationsof proposed actions are placed before decision-makers to enable thematter to be weighed carefully against other relevant considerations.Where an environmental evaluation is performed, it is more incidentalthan through deliberate legislative compulsion. This is, to say the least,

38 Chapter 318.39 Such an appl ica t ion is m a d e t o t h e Chief Health Officer in t e r m s of sec t ion 7 (1) of t h e Act.40Section7(2)(a)(ii).41 Section 101 (1) and (2).42 Section 101 (3) (a).

160 ZIMBABWE'S ENVIRONMENTAL IMPACT ASSESSMENT POLICY

unsatisfactory from the perspective of sustainable development, or rather'sustainable management',43 of the resources.

THE EIA POLICY IN ZIMBABWE

Encouraging steps were taken by the Government of Zimbabwe first, in theform of a White Paper circulated by the relevant ministry inviting publicinput on a proposed environmental assessment policy.44

Secondly, following the consultation process engendered by the WhitePaper, an EIA policy has been determined as indicated above. Finally, ateam of environmental law consultants was contracted to review theexisting statutes dealing with, or having an impact on, the environmentand, inter alia, to suggest how the EIA policy could be given a statutorybasis.45 This has come in the wake of the adoption of a NationalConservation Strategy, one of whose mandates to the Ministry ofEnvironment and Tourism was to review all relevant legislation andrecommend adjustments necessary to bring them into line with the strategyfor an integrated approach to management of the environment.46

At the moment, however, environmental impact assessment isprincipally done unsystematically on the strength of the EIA policy which,sadly, has no force of law.

THE CASE FOR EIA LEGISLATION

Needless to say, it is undesirable for sound environmental behaviour to beenforced by a policy which has no legislative basis as has been pointedout by academic commentators.47 One critic has put the case as follows:

43 A concept defined in section 5 (2) of New Zealand's Resources Management Act of 1991in the following terms: 'In this Act, "sustainable management" means t h e use, development ,and protection of natural and physical resources in a way or at a ra te which enables peopleand communities to provide for their social, economic, and cultural well-being and for theirhealth and safety while

(a) Sustaining the potential of natural and physical resources t o meet t he reasonablyforeseeable needs of future generations;

(b) Safeguarding t he life-supporting capacity of air, water , soil and ecosystems; and(c) Avoiding, remedying or mitigating any adverse effects of activities on the environment . '44 P rospec tus for Environmental Policy in Zimbabwe: Public Background and Discuss ion

Paper ' (Sept. 1993).45 T h e t e a m compr ises t h e p resen t a u t h o r and D. W. Ruhukwa, a Law Officer in t h e Legal

Advice Section of t h e Attorney-General 's Office.46 The National Conservation Strategy.47Rabie 'A new deal for environmental conservation', 8, 10-12; M. A. Rabie and D. Van Zyl

Smit, 'The nature and effect of legislative and quasi-legislative administrative Acts' SA PublicLaw (1988), 193; (1989), 174. See also R. Fowler, 'Legislative bases for environmental impactassessment' EPLJ (1985), II, 200.

WEBSTER CHINAMORA 161

Such policy statements are more or less expressions of government concern forenvironmental degradation and the need for resource conservation and environ-mental protection . . . Consequently they are not backed by appropriate andeffective administrative or legislative actions capable of translating the policystatements into concrete executable decisions.48

While the declaration of an EIA policy is a promising development, theenforcement of a policy without the coercive force of law may be attenuated.It is, accordingly, imperative for there to be legislation that makes itmandatory for public and private sector development proposals,programmes and projects to consider the consequences on theenvironment.49

Given the diffuse nature of environmental law in Zimbabwe wherethere is a wide range of statutes and ministerial regulations dealing withnatural resource conservation,50 it is imperative for the EIA policy to havea statutory framework. Coupled with fragmentation is a multiplicity ofinstitutions administering these statutes. The problem this creates hasbeen highlighted as follows:

The autonomy and independence of government departments have served furtherto exacerbate the problem, bringing about a situation in which administrativebodies responsible for the making of policy decisions have become institutionallyseparated from those having to attend to the effects of such decisions.51

Put differently, it is not possible in a well-organised constitutionalsystem for the Minister of Environment and Tourism, for instance, toundertake actions relating to another minister's portfolio, however muchhe might be environmentally motivated.

While policy guidelines may be enforced internally through theremedies for administrative insubordination, they cannot be enforcedagainst the general public as they lack legal foundation.52 Even statutorybodies like the Zimbabwe Investment Centre (ZIC) have no compulsion, interms of the statutes creating them,53 to take into account environmental

48 F. S. Ebisemiji, 'Environmental impact a s sessment : Making it work in developing countr ies ' ,Journal of Environmental Management (1973), XXXVIII, 247, 250.

49 The Zimbabwe EIA policy document emphatically states: 'Both public and private sectordevelopment projects must be subject to EIA.'

50 It is added that, depending on whether the concept 'environment' is given a limited orextensive meaning, an even greater number than given by Henley, A Review of Zimbabwe'sNatural Resources and Land Use Legislation; The National Conservation Strategy, or Chinamoraand Ruhukwa, 'Towards an Environmental Management Act' could be identified.

51 Rabie, 'A new deal for environmental conservation', 6.52Ibid., 8.53 Zimbabwe Investment Centre Act, No. 16 of 1992.

162 ZIMBABWE'S ENVIRONMENTAL IMPACT ASSESSMENT POLICY

criteria when evaluating project proposals. Besides, any implied powerscan be invoked only if they are consistent with the body's stated objectives.Thus, as a parastatal organisation, ZIC is expected by the ParastatalsCommission (Repeals and Consequential Provisions) Act54 to make profit,an objective which could negate environmental considerations.

Furthermore, certain development projects have a transnationalenvironmental impact. For example, the proposed Matabeleland-ZambeziWater Project is intended to solve the drought problem in Matabelelandby piping water from the Zambezi River. Such a project has to take thelocal environmental implications into account, as well as the interests ofother riparian states.55 In short, municipal legislation, administrativepolicies and projects cannot be adopted and/or implemented withoutaccommodating their international dimension. It would not be compatiblewith international comity for Zimbabwe's environmental conservationpolicy to be found wanting.

Finally, with the land re-organisation programme in progress, it isurgent for the law to take cognisance of the impact of such land tenurearrangements on the environment. The Government's social engineeringgoals may not be at confluence with environmental conservation.56 Theseconsiderations suggest the need for the EIA policy to be imbued withcoercive force. It is hoped that this will only be a matter of time.

This coercive force, of course, would have to be buttressed byappropriate institutional arrangements for enforcing EIA procedures. Aseparate environmental agency would have to be set up and tasked toperform reviews of EIA reports prepared by project proponents (be theyprivate enterprise or state agency). Such a reviewing body would have tobe multi-disciplinary in order to ensure that there is cross-sectoralcoordination. In fact, it has been suggested elsewhere that an EnvironmentalCommission should perform this function.57

CONCLUSION

The EIA policy has been used on a voluntary basis since its adoption inJuly 1994. Unfortunately, academic comment has rightly noted that today

54 Act No. 29 of 1990.55 See T. Nyapadi, 'Drawing water from the Zambezi River raises international legal issues',

The Sunday Mail, 24 Oct. 1993; T. Maluwa, 'Towards an internationalisation of the ZambeziRiver regime: The role of international law in common management of an internationalwatercourse' CILSA (1992), XXV, 20. The considerations addressed by the authors could havebeen the reason for the Agreement on an Action Plan for the Environmentally Sound Managementof the Common Zambezi River System (1987) between Zimbabwe, Botswana, Mozambique andTanzania.

56 In this regard, see C. O'Reagan, Informal housing, crisis management and the environment'SAPL (1993), VIII, 92.

57Chinamora and Ruhukwa, 'Towards an Environmental Management Act', 116-117.

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pollution control cannot be achieved through reliance upon the voluntaryefforts of polluters.58 The very fact that Government is investigating waysof giving the EIA policy legislative teeth is a vindication of this observation.

The experience of other countries will be helpful in identifying anappropriate EIA legislation for Zimbabwe. Nevertheless, wholesaleimitations may not be ideal for a developing country such as ours. Hencea model will have to be fashioned which ensures that its implementationdoes not place onerous weight on the priorities and resources of Zimbabweas a third world country.

58 Rabie, 'Legal remedies for environmental protection' CILSA (1972), V, 247.